New Public Sector Equality Duty guidance – December 2023

The week before Christmas Kemi Badenoch’s team were busy. As well as publishing draft guidance for schools on how to deal with students wanting to socially transition, her department has published updated  guidance on public sector equality duty. Any of the many public sector organisations which are members of the Stonewall champions should take notice. As indeed should any of the corporates and professional service firms who may have inadvertently followed what Kemi Badenoch called “Stonewall’s law” when she faced questions before the Women and Equalities Select Committee earlier in December.  The guidance clarifies what exactly the nine characteristics protected by the Equality Act 2010 are (which every diversity professional should know) as well as how the guidance should operate in practice.

“The duty requires decision-makers to understand and take account of the consequences of their choices, having due regard to the aim of eliminating conduct prohibited by the act, advancing equality of opportunity and fostering good relations. At the same time, the duty is not a rubber stamp. It is a legal requirement. Making decisions without having due regard to the duty can be unlawful.”

What is a public sector equality duty? There is both a general duty and a specific duty

The general duty requires public authorities, in the exercise of their functions, to have due regard to the need to:

  • eliminate unlawful discrimination, harassment, victimisation and any other unlawful conduct prohibited by the act
  • advance equality of opportunity between people who share and people who do not share a relevant protected characteristic
  • foster good relations between people who share and people who do not share a relevant protected characteristic.

Private sector companies may not be under any legal obligation to adhere to the duty but they are obliged to comply with the Equality Act 2010 and that means ensuring that the right terminology is used in their policies.The guidance reiterates that the relevant protected characteristics are:

  • age
  • disability
  • gender reassignment
  • pregnancy and maternity
  • race
  • religion or belief
  • sex
  • sexual orientation

And to clarify exactly what the characteristic of gender reassignment means it is “Someone has the protected characteristic of gender reassignment if they are proposing to undergo, are undergoing or have undergone a process or part of a process to reassign their sex by changing physiological or other attributes of sex. Authorities should take care to undertake their assessment by reference to the protected characteristics set out in the act. They should not use  concepts such as gender or gender identity, which are not encoded in the act and can be understood in different ways.”

This is reiterated at the end of the guidance where certain myths are laid out and dispelled, the last one being

Myth 8: “I must consider other demographics beyond the protected characteristics.”

 Unless there is a clear correlation with a protected characteristic, considering demographics that are not protected characteristics will not help you to comply with the duty. In fact, it could obscure compliance in your supporting records. Examples of demographics that are not protected characteristics include:

  • class
  • gender
  • gender identity
  • caring responsibilities
  • single parenthood

In a separate letter to public bodies’ heads Kemi Badenoch wrote:

“I would like to be clear that there is no ‘hierarchy of rights’ under the act, therefore we should not hold one protected characteristic in higher regard than another.”

Many public sector organisations, particularly those on the Stonewall Scheme, have replaced sex with gender. Gender is not a protected characteristic. Nor is gender identity. This guidance makes it very clear that neither are not acceptable.

It is useful to request to see an equality impact assessment on any policy either directly if they are published  or through a freedom of information act request if they are not, where you think that there may be a conflict between certain protected characteristics. The guidance gives a couple of good examples – closing a library and closing a care home but here are some others: introducing a policy of mixed sex wards in hospitals, which may have an adverse impact particularly on women; a local authority removing separate ladies and gents toilets and replacing them with one mixed sex toilet, which may have an adverse impact on women; the introduction of Clean Air Neighbourhood scheme which may may have an impact on the elderly and disabled. Very often these assessments have become mere tick box exercises but this guidance emphasises that there is not only a duty on a public body to apply the aims of the duty but a legal requirement.